Should Neil Gorsuch be Our Next Supreme Court Justice?

Judge Neil M. Gorsuch, President Trump’s nominee for the Supreme Court, represented a Colorado billionaire’s companies and lower-ranking business executives.CreditAl Drago/The New York Times

Back on February 12, following the nomination of Neil Gorsuch to fill the vacant Supreme Court seat left by the death of Justice Antonin Scalia, I posted information based on what we knew about Judge Gorsuch’s philosophy and judicial leanings.

Justice Gorsuch does not leave a vast trove of judicial rulings in his wake upon which we can make hard and fast conclusions regarding how he might rule on cases which would make their way to the Supreme Court; however, there are some. I will first reference those that we know about in bullet form, and they will be fleshed out later in this post.

“Gorsuch’s 10-year record is unwieldy and, at the same time, incomplete. He has never issued on-point rulings on the kinds of issues that traditionally cause controversy in Supreme Court nominations: abortion, affirmative action, voting rights, the reach of the Second Amendment, same-sex marriage.”

Abortion, based on his book, he would likely not be a friend to Roe v. Wade.

LGBTQ Rights. He has stated that the fight over marriage equality was a political, rather than a constitutional fight, i.e., would likely not have sided with the majority on this issue.

Transgender Issues. He has joined majorities in two cases ruling against transgender plaintiffs: one dealing with a transgender prisoner who was not getting hormone shots and another plaintiff who was denied bathroom access.

Employment Discrimination. He has mostly ruled in favor of employers over employees.

Not a friend of Federal Regulators. He would likely no longer give deference to federal regulators or regulations like those coming down from the Environmental Protection Agency (but, given the fact that new director Scott Pruitt wants to dismantle the agency that might not be a bad thing.)

The Environment. By the same token, environmentalists fear he will not defer to the protections promulgated by the EPA and others.

Presidential Power. While in the Justice Department, Gorsuch worked closely with the Bush administration, defending enhanced interrogation techniques, as well as defending the facility, generally, according to the Washington Post and the New York Times.

So, is it Worth it to Fight the Gorsuch Nomination?

Here is a summary of what various people have had to say about the current nominee, Neil Gorsuch. First, and in fairness, even his critics believe that he is “qualified” to be a judge. I take the term “qualified” to mean that he knows how to be a judge–that he’s been a judge long enough to learn the ropes and to know how to do the job. So, okay, yeah he can do the job. The bigger question is, “Do we really want Gorsuch on the Supreme Court?”

Under current Senate rules, 60 Senators have to agree to proceed to an up-or-down vote on Gorsuch, who currently serves as an appeals court judge in Colorado. Republicans have 52 seats in the Senate. But GOP leaders could employ the “nuclear option” to change the rules and allow Gorsuch to be confirmed with a simple majority of 51 votes.

An Originalist.

So let’s think about this “originalism” business for a second because it sounds really quite reasonable on its face.

According to the Wall Street Journal (and many other sources), “Like Scalia, Gorsuch is a proponent of originalism — meaning that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written — and a textualist who considers only the words of the law being reviewed, not legislators’ intent or the consequences of the decision.”

“Originalism is an umbrella term for interpretative methods that hold to the “fixation thesis”—the notion that an utterance’s semantic content is fixed at the time it is uttered.[4] Originalists seek one of two alternative sources of meaning:

The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.

The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.”

Obviously, this interpretive viewpoint does not allow one to view the Constitution as a “living, breathing document” which is capable of growing with the society it is designed to guide and govern.

In a speech to Case Western Reserve University School of Law in Cleveland, Gorsuch said that legislators “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” but “judges should do none of these things in a democratic society.” Instead, they should use “text, structure and history” to understand what the law is, “not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” While this may sound strategy, it is the same logic and interpretive leanings that brought Scalia to most of his holdings and has seemed to always lead Gorsuch to conservative outcomes.

So let’s think about this “originalism” business for a second because it sounds really quite reasonable on its face. Society in the 1700s was not what it is today, at all. When the framers wrote the Constitution, the word “man,” it did not mean “humankind,” it meant white men who owned real property. Women were considered property as were black people who were below women and were classified as slaves. So an originalist might truly and in good conscience interpret our antidiscrimination laws which define classes of people based on suspect groupings such as race, sex, national origin, gender, etc. as granting rights to people that are not enumerated in the Constitution as it was originally drafted. Do you really need more examples as to how an originalist interpretation of the wording of the Constitution is anathema to our current society?

Gorsuch’s Likely Stance on Issues:

On abortion,activists on both sides of the issue believe they know where he stands. They point to language in his book “The Future of Assisted Suicide and Euthanasia,” in which he opines that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”

We also know that he sided with Hobby Lobby and in Little Sisters of the Poor in its objection to providing contraceptives to employees under the Affordable Care Act saying “The opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty,” he wrote in a dissent in the Little Sisters of the Poor case. “ When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.”

Despite the relative novelty of legal same-sex unions, the constitutional question here should be easy—even for an originalist like Gorsuch. Both conservative originalists (like Steven Calabresi) and liberal originalists (like Akhil Amar and Elizabeth Wydra) have concluded that the 14th Amendment protects same-sex couples’ right to marry. But Gorsuch appears to disagree. In a 2005 National Review op-ed, Gorsuch mocked the court battle for same-sex marriage as a political fight dressed in constitutional garb.

“American liberals,” he wrote, “have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” on liberal issues including “gay marriage.” He also noted that voters routinely rejected same-sex marriage on the ballot, scoffing that liberals can only “win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts.”

His comments on same-sex marriage itself are discouraging enough that it seems safe to assume he’s a skeptic of related rights and privileges. And his desire to accommodate corporations’ religious beliefs—even when they burden employees—raises the possibility that he would let religious businesses discriminate against same-sex couples.

Gorsuch actually has a record on transsexual issues where he joined a decision flatly rejecting the constitutional claims of a transgender prisoner who alleged that she was being given inadequately low doses of hormone treatment in violation of the Eighth Amendment, and being housed in an all-male facility in violation of the Equal Protection Clause.

In another case he upheld an employer’s decision barring a trans woman from using the women’s restroom until she could “prove completion of sex reassignment surgery,” then let her contract expire.

Employment Discrimination.Between 2007 and 2016, Judge Gorsuch issued the majority opinion in 14 (published) employment discrimination cases: 9 were favorable to the employer, 3 were favorable to the employee, and 2 were partial affirmances and partial reversals of the district court and, as a result, had both favorable and unfavorable effects for the employer and employee. None of these 14 opinions garnered a dissent.

Federal Regulations. Courts have long given deference to federal agencies in their rule making roles under the idea that courts should defer to agencies when a given law or rule is unclear. The assumption is the decision makers at the agencies are experts, and Congress wants courts to back off and let them do their thing. Gorsuch, not so much.

Known as the Chevron deference, which takes its name from a 1984 case involving the oil company and the EPA. Critics like Gorsuch argue the idea gives too much power to agencies like the FCC, EPA, or the National Labor Relations Board. The critics feel it shields agencies from proper oversight from the judicial branch, and can let regulators run amok. (Defenders of the doctrine would say it’s a commonsense and efficient way for agencies to operate, and point out courts can still step in if an agency goes off the rails).

If Gorsuch’s views in this field gain traction on the Supreme Court, the result would diminish the power of regulators, who would proceed more cautiously since they would have a greater fear of being sued. Many businesses, which have complained of a growing regulatory burden, would welcome this outcome. Consumer advocates, however, would likely fear any attempts Gorsuch and the Supreme Court to undercut Chevron because agencies are often on the front line of protecting the public.

It is also expected that corporations will see Gorsuch as an ally in their push to rein in class actions over violations of securities law. As the Wall Street Journal notes, Gorsuch has railed about such suits as an opportunistic shakedown by lawyers.

On environmental matters, Gorsuch is almost certain to be part of a conservative majority.

Will Gorsuch be confirmed by the Senate? Are his views on federal regulations, LGBTQ rights, abortion, employment, religious freedoms, etc be enough to sustain a democratic filibuster in the Senate? Do democratic senators care enough to filibuster? Do we really want another originalist on the bench?

At a time when our country seemed to be reaching an apex of awareness and acceptance concerning human rights, the advancement of the races, sexes, genders and orientations is this the direction the Supreme Court should be taking? Do we want–need–a justice who sees the Constitution as a living document, one that grows and envelopes us as we grow, or as a crumbling piece of parchment rooted firmly in the 1700s?